D County Council v LS

Summary: This case is the first the authors are aware of to consider the test for capacity to have sexual relations following R v C [2009] 1WLR 1786, in which doubt was cast on the earlier decisions of Munby J (as he then was) in X City Council v MB, NB and MAB [2006] 2 FLR 968 ("MAB") and MM v Local Authority X [2007] EWHC 2003 Fam ("MM"), both of which set out a very low threshold. In order to understand the decision in LS, it is necessary first to summarise briefly the ratio of these three cases.

In MAB, Munby J defined the test as follows:

"Does the person have sufficient knowledge and understanding of the nature and character – the sexual nature and character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse (and, where relevant, to communicate their choice to their spouse)?"

In MM Munby J explained further that in his view, capacity to consent to sexual relations was act-specific, not person-specific, saying that:

"A woman either has capacity, for example, to consent to 'normal' penetrative vaginal intercourse, or she does not. It is difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z."

R v C was a criminal case, and thus the decisions in MM and MAB did not fall directly to be considered. However, in those cases and in R v C, it has consistently been said by the courts that the tests should be the same in both criminal and civil contexts. In R v C, Baroness Hale criticised the approach of Munby J in the civil cases, saying that:

"I am far from persuaded that those views were correct, because the case law on capacity has for some time recognised that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to "weigh [that information]" in the balance to arrive at [a] choice."

And further:

"it is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place. Autonomy entails the freedom and the capacity to make a choice of whether or not to do so."

In LS, Wood J considered the effect of R v C on the earlier decisions and concluded that "it is impossible for me to come to any other conclusion than that the approach adopted in those paragraphs of R v C apply to questions of the capacity, or lack of it, to make decisions on the issue of sexual relations (and indeed of marriage), in both the civil and the criminal arena and, in particular, are, in my judgment, wholly consistent with the statutory requirements of section 3 of the 2005 Act." In other words, he accepted that to the extent the judgments in MM and MAB might be seen to have ignored the third requirement under s.3 MCA – the ability to use or weigh information – they were not correct.

Roderick Wood J went on to consider in what circumstances there might be a lack of capacity and to emphasise the importance of separating "best interests" considerations from the issue of capacity. He said:

"What is necessary is that the particular sexual partner [...] impedes or undermines or has the effect of impeding or undermining the mental functioning of a person when that person makes their decisions, so as to render them incapacitous."

Comment: The position, it appears to the authors, is that the test for capacity to consent to sexual relations is that set out in MM and MAB, with the added requirement that the individual be able to use or weigh relevant information, and in particular should not be prevented from such using or weighing of relevant information by the particular influence of their partner.

The judgment in LS does not completely demystify the issue, and the authors are aware of at least one case presently before the court in which the matter will be considered further. One difficulty with LS, MM and MAB is that they concern what might be thought the more simple cases. When complicating factors such as exploitative relationships, allegations of abuse, simultaneous criminal proceedings, and infection with sexually transmitted diseases exist, the "low threshold approach" may not be thought to give adequate protection to vulnerable adults.